Justice reveals discussion on case

Washington Post

Published
5:30 am CDT, Sunday, October 19, 2003

WASHINGTON -- Offering an extraordinary glimpse behind the veil of secrecy covering the internal deliberations of the Supreme Court, Justice John Paul Stevens revealed in a recent speech to a group of Chicago lawyers that he considered recusing himself from a crucial affirmative action case earlier this year but agreed to stay in the case at the insistence of his fellow justices.

If Stevens, who voted with a five-member majority to uphold race-conscious admissions at the University of Michigan law school, had sat out the case because of a possible conflict involving a former law clerk, Michigan still would have won because of the 4 to 4 vote.

But there would have been no opinion for the court, and the case would not have set a precedent. Instead of being securely legal, the use of race to achieve diversity in university admissions would have been open to another constitutional challenge.

Stevens, 84, made these revelations in a little-noticed 15-minute speech to a luncheon in his honor sponsored by the Chicago Bar Association on Sept. 18.

The comments were taped and broadcast to a small C-SPAN audience Sept. 20, when much of the Washington area was still blacked out after Hurricane Isabel. They were first mentioned in print by the Chicago Daily Law Bulletin and Legal Times.

The regular meeting at which the justices discuss and vote on cases, known simply as "the conference," is so confidential that no one but the nine members of the court is permitted to attend.

Stevens offered little explanation for breaking this taboo. "I thought it might be of interest to you if I repeated some of the things I said to my colleagues," he told the Chicago audience. He did not repeat anything his colleagues said.